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Affirmative Action upheld in ruling of 2008 lawsuit

By George E. Curry/NNPA Columnist
On August 5, 2014

The Supreme court punted the University of Texas lawsuit
challenging affirmative action back to the lower appeals
court last year.
Credit: uprisingradio.org

Almost lost among the news last week about the war in the Middle East and a political war in Washington was a bit of good news: a federal appeals court, acting on a case remanded by the Supreme Court, upheld the University of Texas’ modest affirmative action program.

Celebration of the victory is expected to be short lived because it is certain that the Supreme Court, which remanded the case to the U.S. Court of Appeals for the Fifth Circuit last summer, will take the case up again, this time ruling directly on whether the university’s carefully crafted affirmative action program is constitutional. Unlike the court’s last affirmative action ruling involving Michigan – which had less to do with the merits of affirmative action and more about whether a state ballot initiative could be used to ban affirmative action – the Texas case goes to the heart of affirmative action.

The lawsuit was brought by Abigail Fisher, a White applicant who was turned down for admission to the University of Texas at Austin in the fall of 2008. Texas operates a Top Ten Percent Plan, which grants automatic admission to state universities to students who graduate in the top 10 percent of their class. The year Fisher applied, 81 percent of the university’s admission slots were filled in that manner.

Fisher did not finish in the top 10 percent of her class, forcing her to compete with 17,131 other applicants for the remaining 1,216 seats for Texas residents. Given the number of Top Ten Percent students accepted to the University of Texas, even if Fisher had been perfect in her holistic review, school officials said, “… she could not have received an offer of admissions to the Fall 2008 freshman class. If she had been a minority, the result would have been the same.”

Of all of the factors admissions counselors examined, such as essays and awards, Fisher chose to blame her failure to gain admission strictly on race.

Like a string of Whites challenging affirmative action, she filed suit claiming the consideration of race violated the equal protection clause of the 14th Amendment to the U.S. Constitution, a provision that was first adopted to protect former slaves from Southern lawmakers. It states, “no state shall … deny to any person within its jurisdiction the equal protection of the laws.”

As the University of Texas noted, the holistic review was created to give students an individualized review during the admissions process, looking at factors such as demonstrated leadership qualities, work experience, and extracurricular activities.

“Close scrutiny of the data in this record confirms that holistic review does not, as claimed, function as an open gate to boost minority headcount for a racial quota,” stated the appeals court. “The increasingly fierce competition for the decreasing number of seats available for Texas students outside the top ten percent results in minority students being under-represented – and White students being over represented – in holistic review admissions relative to the program’s impact on each incoming class.”

In 2003, the Supreme Court, in Grutter v. Bollinger, upheld the constitutionality of affirmative action in a case involving the University of Michigan Law School. The court’s 5-4 majority accepted the assertion that diversity is essential to the educational mission of universities, but required a standard of “strict scrutiny” be applied, requiring that remedies be narrowly tailored to achieve the goal of a diverse student body.

The University of Texas, following a long, documented history of racial animus, complied with that narrow Supreme Court standard and the Fifth Circuit originally sanctioned those efforts. The decision was appealed and the Supreme Court sent the case back to the appeals court. Now, for the second time since 2011, the Fifth Circuit judges have stated unequivocally that UT is operating a lawful affirmative action program.

That was evident to Ruth Bader Ginsburg, the lone dissenter in the 7-1 decision to send the Texas cases back to the Fifth Circuit. “… Like so many educational institutions across the [n]ation, the University has taken care to follow the model approved by the Court in Grutter v. Bollinger,” stated Ginsburg.

However, this conservative-dominated Supreme Court will probably visit this case yet again, trying to find a way to pick at one of its own rulings.

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